Telegram-herald., 1887-11-29
NEW TRIAL DENIED
54dgs Bariia<@saass DssssIos-fns Case
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wa Have - bs s~ssiea IA tas
sapreaas csaxk-fhs Attox-
a=s's ta~....
A. ocssa.k yssfsrs2y afternoon Judge
Burliazan8s Fsritea ala dseison IN lhs
dsmaaA iof Ees txisi bY lhs attorneys
f8r IDA street. kalizay Conpany 10
tie Laazalla cass. Thus tAs J11sa re-
clles eousefnlng tas e<i1saes ~ tae Jurors,
aoo are alisxed 70 nsss nsea lnapressod -
shAt sas sad 81 Deputy -S8erid Wisrsf14.
Ia teierniaiag tas nosioa for = Ges
triAl tee Court slil sag LnaE TIE orst - Z
reasons ass spsd pfsssnt 40 saricieaE
zroaaa tsr grating said motion si-2o0t
making faFtlsr conanQeat uDo1 thea
The eiessa "a. tsslf n and thirteenth
reasons. felaErin< - a Communication ~
TIE f3se-aza u tas Jury room While deilo-
sfslls as % somstalng a Depaiy 5asft
s4ll lie court Lad sad a034. keeping tns
jury 8H- uatll thSy should asfee-tAe
c0art c0as.ieFs that II such i4ngaa<s Sas
used 81 49, iarsmza iE wa not, as these
sane an14gits sh0s. eilaer tie language
" t1s court - tas o1leer nor 0f the ON
cez bus a l4lss satenelt VI The lorrmau,
male upon 10 basis = whatever, aad those
aihday.1s, upon those pJiats. are not intro
d.esd f0G tas ynrposs 0f ia aay manner
IT. peacliag ina Integrity " the court Or
ofilCsr. eat Onsy for TIE parPose u shosips
ialss sga-ealsat aud MlacOndlct ol the fore
man during tAsr dsllbsfar0ns and slr
such pugplss - clearly insdmissl0le. for lE
Is a SCI established principls 0t laE tAst
tue az iagsts of lurOrs are incompetent ID
impsaca taels ewn ysrdlct o. disclosing
thelr mlsc1ndaef or their motives. ar those
OF their fellows. ls5 that a juror may bs
ainit.esi - testify 70 improper coadgcs OF
an o1icsr Who lad them ia charge. u
Mass 50.
The Court will now proceed TO consider
the 7Sh sEh, Jsa l0th, i3th. l9th. O-h ant
Zlzl reasons which relate 20 tne misconduct
OF an olhcer while AZ dinner With the Juror.
and vale the Court has been through the
many volumes that ave been cited upon
this subject, IL Mill 40 refer to such author
ities here eKceot 10 general way.
These cixlt reksoas mat We are now con-
sldcFiGg. or sucD portions .f them as the
Court will nov consider, relate 10 the a.
legged outside pgsssars" brought 20 5eA-
uDOn the jury by the alleged words OF
Depl'y Sheriff Cornelius ID. Wlersna, tho
officer IN charge OF said jury.
As basis for the remarks which the
Coaft will make. il will be well TO repeat
that before catering upon the trial OF ths
above cause each juror took upon himself
la open court 40 oath 10 well and truly
try the cause then pending. and unless dis
charged oy the Court a true verdict given
therein, according 10 the law and the evi-
dence given therein in opsa Court"
Aad IN their presence before they re-
tired. Deputy Sheriff Weiisma took upon
himself an oath that he would to the ut
most OF his ability keen tho persons sworn
as Jurors on this trial In scme private and
convenient place. without meat or drink,
except water. unless ordered by the Court,
that he would not suffer any communica.
ten, oral or otherwise. 10 De made TO them;
that ne would not communicate with said
Jurors himself orally or otherwise, etc.
Such we're the oaths administered to the
Jurors and the officers in the presence OF
said jurors, so that as far as TIE mutual
relations OF zach 20 the other are concerned
there onght not 10 have been any misun-
derstsnding. This motion for a new trial is
based upon the sflidsvits OF sax o. the jurors
who had tskea me above oath 20 them ad-
ninistered by the clerk OF this court, and in
open court. Now while we shall in no
wise try 10 excuse any such actions as are
charged upon that officer, in those atiida-
Wits If true. we will proceed to analyzs
what occurred on the hypothesis that they
are true AID are admissible for the pur-
pose Of impeaching that officer. II while al
dinner the jury are held to have been in de-
Liberation upon the case then the officers
should not have been with them at all, for
it IS well settled that an officers remaining
With a jury during its deliberations is good
ground for n new trial; aud in such a view
OF the case every verdict ever recorded IN
this part of the State would be subject to be
opened sad Q new trial granted. For surely
during such hours IL is the universal GUS
tom here tor officers 10 accompany the
Jurors to their dioner, even in criminal
cases, and thus the officer having been
present during such deliberations, the YER
dict must be set aside aud a new trial
granted. But without gong further into
into that matter, what do we find Was dons
by the officer during this trial while at din
ner and being interrogsted oy ths Jurors
His alleged statement Was that the attor-
neys on both sides were anxious for an
agreement This the jury were supposed
10 know when they went upon that panel.
The desirsbiIity OF this was stated in open
court by the Judge before they retired, aud
was silently acquiesced in by the attorneys
on either side. Now this Court is unable
10 see how. in reply % an Interrogation by
juror to sn officer at dinner, that only
stated what the Juror must OF bis own
knoNledgs have bsen fully cognizsnt, could
Ia any manner prejudice q verdics the
Court eaonot see. The second wrongful acl
Of the officer as shown by the a!fidaVits OF
the Jurors IS this. | quote tom the ah-
davis OF the juror. Il. ). White. "Affiant
then asked said Sheriff how much longer
the Court would keep them out II they
failed to agree. or words % that eAect, and
said Deputy Sheriff replied that IL they did
nos agree The Court would keep them out
I until The following Monday at any rate"
Here. then II the only considerable basis
for granting new trial. provided the
stiidsTirs are true, and this Is the sabjsci
/ tass has received the courts most careful
/ and coRsiderate attention; and IN thi:
1 regard this case comss very near the rails
established IN several of the cases ciie1
where the misconduct OF an officer has been
considered sufficient gr0uad for a nes
| trial.
The difference, II any. consists in this
/ II while a. dinner ths jury we're Or we're not
I celebrating. surely the action OF Juror,
acting under the Obligation OF the ABOVE
/ oath. and having heard the oifcer take an
/ oath as ABOVE 10 have no communication
| With such jury eKcsp. - ask them II they
had agreed upon their verdict. etc was
such action 5y a Juror As tended 20 im
peach his own vsrscity as juror, II no
70 impeach MS verdict, and therefor
such affidavit oughs not 70 be rsce.ved fol
that reason alone. But this case differs IN
this from tia csss ciled. Here n-igher ths
Juror ASKED f0e snT opinion Of the Judge
| nor did the oisicer volunteer any opinion D
! the judge But the Juror asset the ofti 81